In November 2014, Tennesseans voted, through a referendum, on a proposed Constitutional amendment known as Amendment 1. The campaign was one of the most publicized and most expensive in the state’s history. The amendment passed with 53% of the vote. It reads “[n]othing in this Constitution secures or protects a right to abortion or requires the funding of an abortion,” effectively giving state legislators unchecked power to ban abortion as far as the U.S. Supreme Court allows. Since its enactment, the Tennessee legislature has passed bills that ban abortion after 20-weeks of pregnancy and require a 48-hour waiting period before an abortion can be performed.

However, the future of this Constitutional amendment is far from clear. The amendment was first challenged in Tennessee state courts in 2016. The usual pro/anti-abortion Constitutional issues aren’t on the table, though. Instead, it is the language of the Tennessee Constitution that mandates vote tabulation methods in different types of elections. The language at issue says that, for an amendment ballot to pass, there needs to be “a majority of all the citizens of the state voting for governor, voting in [its] favor.” Tennessee state legislatures have traditionally read this to mean “that passage of an amendment depends on comparing the number of votes cast for governor with the number of votes cast for an amendment.”

Opponents of the amendment filed suit to demand a recount of the amendment vote, arguing that this Constitutional language actually requires election officials in amendment referendums to “count only the votes of those who cast ballots in both the governor’s race and on the amendment to determine whether a majority of those casting votes in the governor’s race also cast votes on the abortion amendment.” The case was filed in two different courts, with the two district court judges ruling separately on the issue.

The case has gone to the Sixth Circuit. During oral argument, attorneys for the State explained that they followed long-standing procedures used in amendment referendums in the past. The attorney for the opponents of the amendment conceded that the Constitutional mandate that ties the votes of one election (the amendment referendum) to another (the Governor’s election) is unique, but argued that it must be enforced as it is the plain language of the Tennessee Constitution. Some of the issues raised by the judges during oral argument included why the issue was not resolved before the election took place, as some activists and lawyers had already identified the issue prior to the election. The judges also seemed concerned about the federal judge’s order of a recount, asking if that swayed too closely to a ‘compelled vote’ or if it was within a federal judge’s purview.